I recently discovered a musician named Bobby Rush, who sings a combination Chicago Sound-Motown-Southern Blues. Along with Buddy Guy he is one of the last surviving old-school bluesmen. He was born in the south, moved to Chicago, and learned to play the guitar along the way. As younger Black people migrate to hip-hop, guys like him are a dying breed.
I can take or leave his music, but his lyrics are priceless. The first thing you notice about them is that they are ingeniously, deliciously, dirty. The second is that he is obsessed with chickens. His biggest hit, Chicken heads, is about a man who falls in love with a woman because of the way she cooks and serves him chicken heads. Here are the first few lines of another song, Bowlegged woman:
Chicken in the car
And the car won’t go.
That’s how you spell –
Chicago.
And here is the chorus to another song, Henpecked:
I ain’t henpecked –
I just been picked by the right hen.
The genius in the songs is the speed with which the discourse shifts from poultry to sex. I am not sure how he does this – maybe chickens are a marker for everyday life in the rural South, and the shift signifies how sex is part of the warp and woof of everyday life. Or, maybe chickens signify that other bodily need, food, as a stopping-off place. I am sure that there is sexual imagery that I have not seen yet in the picture of heads being severed from chickens by a woman, cooked by that woman and then served to a man. The theme of Bowlegged Woman is that some people are just meant for each other like – well, like a bowlegged woman and a knock-kneed man. Henpecked is told from the perspective of an unreliable narrator who tells us that he is just fine, even though he works hard, gives all his money to his woman, and other guys “keep an eye on” her for him when he is at work.
The term “chicken” signifies cowardice in most contemporary dialects of English. Negotiation is usually a game of chicken. Like sex in a Bobby Rush song, negotiation is a basic part of the fiber of our existence. So, as in a Bobby Rush song, we are back to sex.
When I say “negotiation”, I mean a negotiation where something meaningful is at stake. Low-stakes negotiations give rise to atypically savage behavior because there is no penalty if you overplay your hand in such a context. Mock negotiations held in law- or business school classrooms or on professional retreats usually devolve into name-calling, and then into drunken debauchery, bluebooking, fisticuffs and, if bonobos are involved, snogging. Departmental politics at universities tend to be particularly brutal – because so little is at stake.
By contrast, when you know that you risk losing something if you screw up a negotiation, you behave yourself better.
The foregoing is complicated in the case of an asymmetrical negotiation. That is a negotiation where the stakes are high for one party but low for the other. That can occur when one party’s bankroll is significantly bigger than the other’s. It can also occur when one party has nothing to lose. It is difficult to play no-limit poker with a guy whose stack is ten times bigger than yours because he can survive a losing streak but one bad beat or clumsy tell can wipe you out. It is also difficult to negotiate with someone who does not give a shit about the outcome, if you yourself stand to lose something of value if the negotiation does not go as planned (ask anyone who has negotiated with a terrorist, or a two-year-old child). In either case, the counterparty has the edge.
Another wrinkle to the asymmetrical contest issue is that of moral hazard. A moral hazard arises when a party knows that it can take on more risk than usual because it is protected by some kind of backstop, such as insurance, or a government guarantee. If one party to a negotiation benefits from moral hazard, that shifts the fulcrum. Try playing chicken with a driver who has good collision insurance when you have none – or competing in the debt markets with an issuer whose bonds bear an implicit government guarantee.
When a property owner negotiates with a recalcitrant resident, the stakes are quite high. If the owner over-plays his hand, the resident could trash his property, hold it hostage for months or years and possibly sue. In New York State, the danger for property owners is deepened by the regulatory environment. And even though residents have plenty of legal remedies at their disposal, it is still a high-stakes game for them as well, because they are playing for the roof over their heads.
I recently concluded negotiations with two residents in my park in northern New York. Both resolved themselves with textbook-like predictability. Each resident blinked when she realized that she had reached a point where failure to do so would cause her a significant loss. Because the two residents were quite different from each other, this point happened at different stages of the process.
I will call the first resident Miriam and the second, Andrea. But first, I need to recapitulate the manufactured housing eviction process for the civilians in the audience. Attorneys, park owners, park-owner groupies and other people who are already familiar with the process can skip this section.
Here’s the process:
- Most homes in a manufactured housing community are owned by the resident. Some are owned by the park. In the case of tenant-owned homes, the resident only rents the land on which the home sits. In the case of a park-owned home, the resident rents both the home and the land;
- In 2015 and 2019 federal and state legislation was passed that restricted the ability of park owners to finance the purchase of homes to residents. Prior to 2015, park owners who sold homes to residents could “take back paper”, i.e. issue a note, or sell the home on the installment plan. Since 2015, park residents who need financing but who can not qualify for bank loans generally buy homes through one of two financing mechanisms, i.e. a lease with an option or a rent-credit scheme. A lease with an option to buy after a term of years is exactly what it sounds like. A rent-credit system is an arrangement whereby a resident of a park-owned home accrues points similar to airline reward points equal to a percentage of rent payments made. Both of these arrangements are economically similar in certain ways to a mortgage, but they are legally quite different, because title to the home in question remains with the park until the end of the term of the arrangement. That means that, until the rent credit points are redeemed or the option is exercised, the park pays taxes with respect to the home, insures it, is responsible for the warranty of habitability, and is on the hook if someone slips and breaks their ankle on the heating duct, or eats lead paint;
- A resident of a manufactured home can be evicted for one of four enumerated causes. One of these is nonpayment. If you do not pay your home rent or lot rent, you can be evicted;
- If rent has not been paid five or more days from the date on which it is due, the owner sends the resident by certified mail a letter (a “five-day demand”) informing the resident that the rent is more than five days late. At the end of the month, the resident has a notice (a “thirty day notice”) served on the resident. The thirty day notice prays that the resident either pay or move out no later than a date no less than thirty days and one full calendar month from the date of service;
- If payment is not made by the end of the thirty-day notice period, the owner petitions the court for a summary proceeding. A copy of the petition, and notice thereof, is served on the resident. When this is done, the owner requests a court date. The court date must be set within a certain window of time after service of the notice (five to fourteen days, I believe);
- The actual court proceedings tend to be straightforward. If payment has not been made, a judgment is issued. When this is done, the owner gives a transcript of the judgment to the sheriff, and the sheriff issues a warrant of eviction. The warrant of eviction is served on the resident, and states that the resident must be moved out no later than a set date. This date can be either thirty or ninety days from the date of the judgment, depending on the cause of action and circumstances of the individual case;
- At the end of the warrant period, the sheriff shows up and executed the warrant. If the resident is still in the home, they are put out on the street and the locks are changed. The owner is required to move the resident’s belongings out of the home at this time;
- If the home is a park-owned home, that is the end of the process. However, if it is a tenant-owned home, it is a bit more complicated. That is because the eviction process removes the resident; it does not remove the home. When the sheriff shows up in a case like this, the park owner is required to move the resident’s home either to a storage facility or to another lot at the time of warrant execution. If the former resident does not claim the home within six months, the owner can institute an abandoned-property proceeding and buy the home for a dollar;
Note, also, the following:
- From March 2020 to January 15, 2022, a moratorium was placed on evictions under both federal and New York State law. During this time, owners’ only remedy was to sue non-paying residents for monetary damages; and,
- Manufactured homes can only be moved by licensed movers. Movers are busy, hard to pin down, and expensive.
And here are the differences between Andrea and Miriam:
- Andrea owned her home and Miriam did not;
- Miriam had something to lose and Andrea did not; and,
- We had a money judgment against Andrea.
Miriam’s home is a large new double-wide on a corner lot, which she leases with an option to buy. When she moved in, she asked me to increase the monthly rent so that the home could be “paid off” earlier than I had originally suggested. When she said ‘paid off’, the hair on the back of my head stood up and I said, “It’s not a mortgage”.
-But – when will I pay it off?
-You don’t pay it off in increments. You get an option to buy it.
-Like, any time?
-It’s a European option.
-You’re not making sense.
-I can move the option maturity up if we increase monthly rent. But it’s not a mortgage or a rent-to-own. It is a plain vanilla lease with an option to buy in three years. If you move out before the option matures, it’s like moving out of an apartment.
Miriam wanted to buy her home sooner, rather than later. She wanted that, because she liked the home. And even though she would not accrue equity with rent payments, she looked forward to option maturity, when she would get title.
Miriam started off with a bang. She clearly loved the home. She painted it, bought lawn statues, throw-pillows and a two thousand-dollar fridge, and hired Mike, the manager of that park, to do some custom rehabs. Then, she began to slip. She told us that her business was affected by Covid. One of her biggest customers had stiffed her. She missed payments. She received a check from ERAP. She slipped again. After January 15 of this year, we served her with a five-day demand and a thirty-day notice. We got a court date. Mike asked me to go to court with our attorney because he was going to be busy with Andrea that morning. I said, “Sure”.
The day before her court date, I was driving up to the park from my house. Somewhere between Woodbury Commons and Binghamton, Mike called me and said, “You will never believe this.”
-You won the lottery?
-Miriam paid.
-Holy crap.
-In full, in cash.
-The god of manufactured housing is smiling down on us.
-Yes, he is.
Miriam blinked. Why? Because if we had gone to court, she would have lost. And if that happened, she would have lost her right to exercise her option. And that would have meant losing the home that she loved.
Andrea also reached her pain point – but because she was different, it was different.
When the eviction moratorium went into effect, Andrea stopped paying lot rent. First, she told us that she would pay us when she got her Covid relief check. Then, she told us that the relief check had been spent on car repairs. Then, she told us she would pay us in a week. That week came and went. Then, she ghosted us.
That pissed Mike off. A lot of things piss Mike off, because he expects people to behave like responsible adults. He said, “It’s easy for you. You sit down-state behind a desk. I have to deal with these people”. I said, “Pick your battles. Getting angry at someone is like burning down your house to get rid of mosquitoes.” Then, I chewed through a leather strap and punched through a sheetrock wall.
We sued Andrea for a money judgment. The attorney we hired moved slowly and overcharged. The judgment we got was for a static amount, but Andrea kept on racking up new debt as the months passed. The federal moratorium was overturned on the Supreme Court’s “shadow docket”, but the state moratorium remained. In his dissent to the Supreme Court case, Breyer said that property owners do not need the remedy of eviction because they can sue for a money judgment. I reflected that Breyer has no more of a clue about running a business than Souter does about strippers, or the College of Cardinals does about family planning.[1]
And then, on January 15, the New York State moratorium was overturned. We began a summary proceeding against Andrea. We got a judgment. A warrant was issued. The sheriff told us that he would be at Andrea’s home at 9:00 last Thursday to raust her. We arranged for a mover to show up at 9:00, when the sheriff would be there. I made plans to drive up, so that I could go to court with our attorney to face Miriam, while Mike dealt with Andrea. Then, while I was somewhere between Cortland and Syracuse, an hour and a half after Mike had given me the news about Miriam, my phone rang again. It was Mike, again. He said, “Andrea is willing to sign over her home in exchange for forgiven debt.”
-She’s a fucken sociopath.
-Yes, she is.
-Bitch.
Mike and I discussed specifics. Andrea showed up and signed over the home and I called the movers to cancel their trip to the park.
Andrea’s pain point was different than Miriam’s. It occurred later in the eviction process, just before warrant execution. Why? And why did she crack at all? Why didn’t she continue to ghost us?
Here’s why:
- Early in the process, she had less to lose. Her home was an older, non-titled two-bedroom one-bath singlewide worth about $5,000. With the eviction moratorium in effect, she knew that she could rack up more than $5,000 in debt before she was eighty-sixed. By the time the warrant was due, she had accumulated $6,070.92 in back rent. That was a winning trade for her; and,
- If she had simply ghosted us after warrant execution, we would have still had the money judgment outstanding. She hung on to possession of the home for as long as she could. Once she knew that she would lose that, she surrendered legal title in exchange for debt forgiveness.
Effectively, she traded a crappy $5,000 home for two years of rent-free living. That is not admirable behavior – but it is rational, in a Homo economicus kind of way. I know some bond traders who would be proud to do that.
The domestic chicken is now the most common bird in the world. Its ancestor, Gallus gallus, a red junglefowl, was first domesticated and raised for eggs and meat in southeast Asia, although there is some uncertainty of whether it was domesticated independently elsewhere. It then spread via trade routes to southern and central Asia, Europe and Africa and Polynesia. Evidence of a pre-Columbian chicken was found in Chile in 2007. DNA test suggest that those chickens came from Easter Island, which before contact with Europeans was inhabited by Polynesians, as well as enormous stone statues. Today, most chickens live in factory farms. After being transported from hatcheries, broilers and layer hens live in intensely crowded, often unsanitary conditions. They are prevented from resting properly or engaging in normal social activities. They are genetically manipulated, debeaked, confined to tiny “battery cages with sloped floors, and pumped full of antibiotics. A single factory farm can raise over 500,000 broilers a year, or hundreds of thousands of layer hens, at a time. In 2018, 9.2 billion chickens were slaughtered in the United States. If only those birds knew what they have contributed to the science of commercial negotiation.
[1] Barnes v. Glen Theater, Inc. 501 U.S. 560 (1991) (Souter, dissenting, holding that stripping is “inherently expressive”, and hence protected by the First Amendment).